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September 1, 2004.

SHARON NIVEN, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: DENISE COTE, District Judge


On November 24, 2003, Sharon Niven ("Niven") filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability benefits. Niven has moved for judgment on the pleadings arguing that she is unable to perform even sedentary work and asking that the Commissioner's decision be reversed, or that the action be remanded for a new hearing. The Commissioner has cross-moved for judgment on the pleadings. For the reasons that follow, the decision of the Commissioner is affirmed. Page 2


  The following facts are taken from the administrative record. Niven was born June 30, 1956 and was 44 years olds at the alleged onset of her disability. She has a high school education and is the mother of two children. Niven worked as a bartender, which required the ability to stand for long periods of time and minimal lifting, until 1999 when the restaurant where she worked closed. Niven states that she did not seek further employment because of her back pain.

  Overview of Application History

  On February 7, 2002, Niven submitted an application for disability benefits and Supplementary Security Income to the Social Security Administration. Niven asserted that she had been disabled since March 1, 2001, due to back pain, migraine headaches and depression. The applications were denied and Niven filed a timely Request for Hearing. Niven appeared before Administrative Judge Newton Greenberg ("ALJ") on February 24, 2003. On April 16, 2003, the ALJ determined that Niven was able to "sit for 6 hours, stand for 2 hours and lift up to 10 pounds." The ALJ found, inter alia, that

  Medical evidence establishes that claimant is diagnosed with findings consistent with discogenic disorder of the lumbosacral spine and rule-out major depressive episode in partial remission,*fn1 but that she does not have an impairment or combination of impairments listed Page 3 in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.*fn2 . . .

The claimant's statements regarding the severity of the alleged symptoms and degree of functional limitations are not credible. . . .
There is sufficient evidence to support the findings regarding the claimant's residual functional capacity at step five.*fn3 . . .
The claimant has mild limitation in activities of daily living; no limitation in social functioning; mild limitation in concentration, persistence or pace; and no documented episode of decompensation.
  The ALJ concluded that Niven was not disabled and "retains the residual functional capacity for unskilled, sedentary work." In July 2003, the Appeals Council denied Niven's request for review and the ALJ's decision became final.

  Medical History

  Niven's relevant medical history begins in June 2001, when she underwent an initial psychological assessment at the Bellevue Hospital Center ("Bellevue") for complaints of depression that surfaced after her husband left her and her three-year old son. An examination of June 21 and 28 showed that the plaintiff was cooperative and well-groomed. Her thought process and thought content were within normal limits. While Niven did not have any suicidal ideation, her mood was depressed. Niven told the examiner that she had been feeling better, but complained of Page 4 recent stress after a welfare agency visit. The examiner's diagnosis was: Axis I — major depression episode, rule out adjustment disorder; Axis II — deferred; Axis III — none; Axis IV — unemployment; and Axis V — 60.*fn4

  Niven again sought medical attention on July 19, 2001, where she reported that she was presently taking Celexa and was experiencing "minor" back pain. The examining physician's assessment was that she was suffering from anxiety, a migraine, and a urinary tract infection.

  Throughout 2001, Niven continued to seek medical treatment at Bellevue. On August 6, 2001, Niven reported increased lower back pain and depression, but that she was taking Celexa which gave her some relief from her depression. There was no evidence of bruises or trauma, no sensory deficit to the lower extremities, and strength and flexibility were normal. The physician's assessment was low back pain, questionably due to old trauma. Valium and Motrin were prescribed. On August 22, 2001, Niven returned to Bellevue complaining of severe left flank pain which was likely due to a kidney stone. A lumbar spine x-ray was within normal limits. On September 10, 2001, a CT-scan revealed no evidence of a kidney stone, and Niven told her physician that her pain had Page 5 subsided and she was able to tolerate her present discomfort without medication. She walked without discomfort and no deficit was observed in her gait.

  On October 19, Niven was assessed at Bellevue's pain treatment center. While Niven stated that she was not working because of "severe depression" and that walking or sitting in one position exacerbated her lower back pain, she indicated that she was able to perform activities of daily living and that she had a good response to Tylenol with codeine and hot showers. An examination revealed no reflex abnormalities or loss of motor function. Niven was diagnosed with lower back pain and referred to physical therapy.

  On November 2, Niven was seen at Bellevue's rehabilitation medicine service. Niven complained of back tenderness that was exacerbated by sitting and walking. She was found to have tight hamstrings and generalized palpable tenderness in the lumbar spine area. Niven performed a straight leg test normally and her lower extremities had normal strength. Niven was again diagnosed with lower back pain and the attending physician prescribed physical therapy.

  In an examination on November 5, 2001, a consulting physician, Dr. Clyde Weissbart concluded that Niven was able to perform sedentary activity with moderate limitations in activities involving sitting, standing, walking and lifting. On November 8, Niven was diagnosed with, among other things, low pack pain, anxiety, and depressive disorder. During an examination on December 10, 2001, Niven remarked that rehabilitation was helping Page 6 a lot, her condition was "much improved," and she was "happy." Niven was seen again at Bellevue's pain clinic on December 14, where she reported that therapy was helping, but she was still experiencing intermittent left, low back pain. During an examination two weeks later, Niven reported that her back discomfort increased with activity. She ...

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